Publ i shed i n Entertai nment and Sports Lawyer, Vol ume 27, Number 2, Summer 2009.

2009 by the Ameri can Bar Associ ati on. Reproduced wi th permi ssi on. Al l ri ghts reserved. Thi s i nformati on or any porti on thereof may not be copi ed or
di ssemi nated i n any form or by any means or stored i n an el ectroni c database or retri eval system wi thout the express wri tten consent of the Ameri can Bar Associ ati on.
Family Guy
Creators
Fair Use Wish
Comes True
BY CYDNEY A. TUNE AND JENNA
F. LEAVITT
R
ecently, the U.S. Federal Court
in the Southern District of
New York dismissed a copyright
infringement case brought against the
creators, broadcasters, and distributors
of the Family Guy television show by
the owner of the copyright in the Acad-
emy Award-winning song When You
Wish Upon a Star.
1
Plaintiff Bourne
Co. sued the defendants for copyright
infringement, alleging that the song
I Need a Jew was a thinly-veiled
copy of the music from the world-
famous When You Wish Upon a Star,
coupled with new anti-Semitic lyrics.
The matter was before the court on the
parties cross motions for summary judg-
ment. In granting the defendants mo-
tion for summary judgment and dismiss-
ing the complaint, the court held that
the song I Need a Jew was a parody
of When You Wish Upon a Star and
exempt from liability under the fair use
doctrine of the U.S. Copyright Act.
2
THE HISTORY
The facts leading up to this case date
back several years to the second season
of the then soon-to-be canceled Family
Guy television show when the episode
When You Wish Upon a Weinstein
was developed and produced. The
episode was not actually aired during
that season because of concerns about its
religious content. However, it aired some
years later on the Cartoon Network,
and eventually Fox, and also was sold on
DVD compilations of season three as a
bonus un-aired episode.
The episode is about the cartoon father,
Peter, and his inability to manage his fam-
ilys fnances. It begins with Peter being
swindled by a traveling salesman, which
puts his familys fnances into disarray.
Peter is convinced to use the familys rainy
day fund to purchase volcano insurance
(despite a lack of volcanoes in the fctional
Rhode Island city in which he resides).
After being chastised by his wife for
depleting the rainy day fund, Peter heads
to the local bar to commiserate with his
friends. Peter then hears his friends talking
about how men with Jewish-sounding last
names helped each of his friends with their
respective fnances. So, Peter decides that
he needs a Jew to help resolve his own
fnancial mess.
In an almost exact replica of a scene
from the Walt Disney movie Pinocchio,
Peter gazes longingly out his bedroom
window up at a starry sky with one bright
star and sings the song entitled I Need a
Jew. The frst four notes mimic those of
When You Wish Upon a Star. During
Peters song, a spaceship magically ap-
pears and Peter hops onto it and fies to
outer space. During this fantasy shot, the
spaceship magically turns into a fying
dreidel and a menorah (both Jewish in-
struments). Peter fnally falls asleep while
gazing out the window. As if by magic,
a knock at the front door awakens him.
Its a Jewish man, Mr. Weinstein, who
needs to use Peters phone because his car
has broken down. Peter believes that his
wish has come true, as here is the Jewish
man that he wished for. Mr. Weinstein
quickly gets Peters money back from the
scamming salesman. Peter and his family
then attend temple with Mr. Weinstein,
with the brides of Christ (nuns) being
activated to come after Peter for attend-
ing temple (Peter, being raised Catholic).
Peter then decides that his son, Chris,
should become a Jew so that Chris will
grow up smart (the episode repeatedly
pokes fun at Chris lack of smarts).
Peter and Chris head to Las Vegas to get
a quickie Bar Mitzvah, which is quickly
stopped (in a scene mimicking the movie
The Graduate) by his wife. At the end of
the episode, Peter learns that Jews are
just like any other people and that his
racial stereotyping was wrong.
Thus, the overall theme of the episode
is Peters childlike belief based on an
inappropriate racial stereotype. The
creators wrote the song in a manner that
was intended to evoke the classic Disney
song. A license was initially sought from
the plaintiff, Bourne Co., the copyright
holder of the original song. The license,
however, was refused. The creators pro-
ceeded anyway under the apparent belief
that a license was not required because
the use was a parody.
The history of When You Wish
Upon a Star is fairly well known. The
song was introduced to the public in the
1940 version of the Disney movie Pinoc-
chio. The flm depicts Jiminy Cricket
singing the song while Gepetto looks out
upon a starry sky with one bright star and
wishes for a real boy. The song became
an instant hit and won the 1940 Acad-
emy Award for Best Original Song. Since
1940, the song has been recorded by over
100 different artists, has been included in
THE SONGS
I Need a Jew When You Wish Upon a Star
Nothing else has worked so far, When you wish upon a star,
So Ill wish upon a star, Makes no difference who you are,
Wondrous dancing speck of light, Anything your heart desires
I need a Jew. Will come to you.
Lois makes me take the rap, If your heart is in your dream,
Cause our checkbook looks like crap, No request is too extreme,
Since I cant give her a slap, When you wish upon a star,
I need a Jew. As dreamers do.
Where to fnd Fate is kind,
a Baum or Steen or Stein She brings to those who love
To teach me how to whine and do The sweet fulfllment of
my taaaaaaaaaxes? Their secret longing.
Though by many theyre abhorred, Like a bolt out of the blue,
Hebrew people Ive adored. Fate steps in and sees you through,
Even though they killed my Lord, When you wish upon a star,
I need a Jew. Your dreams come true.
Publ i shed i n Entertai nment and Sports Lawyer, Vol ume 27, Number 2, Summer 2009. 2009 by the Ameri can Bar Associ ati on. Reproduced wi th permi ssi on. Al l ri ghts reserved. Thi s i nformati on or any porti on thereof may not be copi ed or
di ssemi nated i n any form or by any means or stored i n an el ectroni c database or retri eval system wi thout the express wri tten consent of the Ameri can Bar Associ ati on.
numerous flms and television programs,
and was ranked the seventh greatest song
in flm history by the American Film
Institute. The defendants argued that the
song has been extensively used by Disney
and is generally associated with Walt
Disney and his company. This is impor-
tant because part of the parody argument
relies on the fact that Walt Disney was
purported to be anti-Semitic.
THE LEGAL ACTION
The major facts in the case were not
in dispute. The parties both agreed that
the defendants use of the song When
You Wish Upon a Star would be an
infringement of Bournes rights under
the Copyright Act, but for a fnding of
fair use. The parties agreed that the new
song incorporated musical elements of
the original song in a manner intended
to evoke the original song. The parties
further agreed that at least one purpose
of the new song was to hold bigotry and
people like Peter . . . up to ridicule.
IS I NEED A JEW A PARODY OR
SATIRE?
Because the fair use defense is applied
differently to parodies and to satires, the
court frst looked at whether I Need a
Jew is a parody, a satire, or neither. A
parody is defned as a literary or musical
work in which the style of an author or
work is closely imitated for comic effect
or in ridicule, and a satire is defned as
a literary work holding up human vices
and follies to ridicule or scorn.
3
Thus,
the distinction between a parody and a
satire turns on the object of the com-
ment made by the allegedly infringing
work. A parody typically uses or refers
to the original to make its point, while a
satire does not necessarily or usually do
so. Therefore, parodies and satires have
different tests under the fair use doctrine.
To be a parody, the law requires
that the new song must be reasonably
perceived to comment on the original or
criticize or ridicule it in some way.
4
That
is, when an author uses some elements
of a prior authors work to create a new
one, the new work must comment on
the original work in a way that has some
critical bearing on the substance or style
of the original work.
5
The defendants argued that the
new song was a parody in two ways:
(1) because it was a comment on the
saccharine sweet, innocent, and
wholesome worldview presented in and
represented by the original song; and (2)
because it evoked the song most associ-
ated with Walt Disney and his company
and commented on the song while at the
same time pointing out Walt Disneys
purported anti-Semitism. The defendants
argued that the song turned the inno-
cence and sweetness of the idyllic Disney
message on its head by ignorantly con-
taining lyrics about inappropriate racial
stereotypes as well as lyrics that earnestly
wished for a Jew to appear and magically
solve the fnancial problems at issue.
Bourne argued that there was no
proof that Walt Disney was anti-Semitic,
nor that the song was iconic for Disney.
Bourne also argued that the song did not
comment on or criticize in any way the
original song, but rather simply ridiculed
racial stereotypes and anti-Semitism.
Bourne argued that nothing in the new
song commented on or criticized the
subject matter, quality or style of the
original song.
The court agreed with the defendants,
fnding that the new song does more than
just comment on ignorant stereotypes. The
court found that the new song specifcally
calls to mind the idyllic Disney world, that
of a false world in which wishes upon stars
come true. In making this fnding, it noted
that the creators purposefully visually rep-
licated the wishful and innocent scene in
Pinocchio in which the original song is sung.
The court viewed one layer of commentary
to be that any categorical view of a race of
people is childish and simplistic, just like
wishing on a star.
The court noted that the visual refer-
ence to Pinocchio by the creators makes
clear that this is not a case in which
the creators simply substituted new lyr-
ics for a known song to get attention
or to avoid the drudgery in working up
something fresh, but, rather, that the
creators were clearly attempting to com-
ment in some way on the wishful, hope-
ful scene in Pinocchio with which the
original song is associated. Additionally,
the court found that even if the new song
did not speak as clearly as it did, and
even if the jokes contained therein were
not funny, the First Amendment would
still protect the new song as a parody.
The court also found support for its
fnding of a parody in the inside joke
about the purported anti-Semitism of
Walt Disney. The court agreed that
the creators specifcally used the song
because of its association with Walt Dis-
neys name and had the character wish
for a Jew, which an anti-Semite would
clearly never do. In fact, it noted that
this inside joke is particularly relevant
because the creators made an additional
joke as to Disneys purported anti-Semi-
tism years later in a different Family Guy
episode, but well prior to the instigation
of this lawsuit. For these reasons, the new
song was held to be a parody. That fnd-
ing alone, however, was not suffcient to
fnd fair use.
THE FAIR USE OF WHEN YOU WISH
UPON A STAR
Fair use is a statutory doctrine that
requires the balancing of four factors in
light of the purpose of copyright lawto
promote the progress of science and the
arts. As mentioned in the case, the fair
use doctrine permits courts to avoid the
rigid application of copyright law if it
would stife the very creativity which that
law is designed to foster. A court must
analyze all four fair use factors to come to
such a conclusion. Fair use is enumerated
in section 107 of the U.S. Copyright Act
and sets forth the following four factors
to determine whether the defense should
apply: (1) the purpose and character of
the use, including whether the use is of a
commercial nature; (2) the nature of the
copyrighted work; (3) the amount and
substantiality of the work used in relation
WHILE PARODY
AND SATIRE SERVE
AN IMPORTANT
FUNCTION BY
SHEDDING LIGHT
ON EARLIER WORKS,
NOT ALL HUMOROUS
COMMENTARIES ARE
PERMISSIBLE UNDER
COPYRIGHT LAW.
Publ i shed i n Entertai nment and Sports Lawyer, Vol ume 27, Number 2, Summer 2009. 2009 by the Ameri can Bar Associ ati on. Reproduced wi th permi ssi on. Al l ri ghts reserved. Thi s i nformati on or any porti on thereof may not be copi ed or
di ssemi nated i n any form or by any means or stored i n an el ectroni c database or retri eval system wi thout the express wri tten consent of the Ameri can Bar Associ ati on.
to the work as a whole; and (4) the effect
of the use upon the potential market for or
value of the copyrighted work.
6
In reviewing the frst factor, the court
determined that the new song was trans-
formative. The court found that the lyrics
of the two songs were almost entirely
different and that the tone and message
of the two songs were strikingly different.
The court also noted that the wishes of
the cartoon characters themselves (Peter
vs. Gepetto) are entirely different, one
wishing for a Jew to fx his fnancial woes
and one wishing for a real boy so that he
could have a family. Additionally, the
court found that the tune itself was similar,
as indicated by the frst four notes, but
also somewhat different, as set forth in the
remainder of the tune. As the new song
was found to be transformative, this factor
weighed in favor of a fnding of fair use.
In reviewing the second factor, the
court found that there was no question
that the original song was a creative
expression that fell within the core of the
copyrights protective purposes. However,
the court noted that the nature of the
work has little impact on the parody analy-
sis, because a parody must use the creative
work to create the parody. Thus, the court
afforded little weight to the second factor.
In reviewing the third factor, the court
determined that the amount of the origi-
nal song that was used was no more than
was necessary to conjure up the original
work in order to make the object of the
criticism recognizable. The court noted
that the creators made the new song more
like the original to ensure the audiences
recognition, and that one of the creators
even had reservations about making the
changes because his contract required
him to create unique songs. Nonetheless,
according to the defendants, the frst four
notes were changed to specifcally make
reference to the original song more ap-
parent to the audience. The court noted
that the defendants could have borrowed
substantially all of the original song if that
amount of borrowing was necessary to
allow the parodic character of their work
to come through. Accordingly, the court
found that this factor weighed in favor of a
fnding of fair use.
In reviewing the fourth and fnal factor,
the court determined that the new song
had no effect on the value of or potential
market for the original song. Bourne argued
that (1) it was deprived of substantial
licensing revenue because widespread,
similar unlicensed works would substitute
for and compete with licensed comedic
programs; and (2) the value of the original
song was harmed because the new song is
highly offensive to a signifcant number of
people. The court rejected both arguments
as misconceptions of the analysis required,
fnding that when the new use is transfor-
mative, there is less of a likelihood of mar-
ket substitution, and market harm may not
be so readily inferred. The court noted that
parody does not typically affect the market
in a way that is cognizable under the fourth
factor. Also, Bourne failed to produce any
evidence that its market for or the value
of the original song was harmed, nor did it
even argue that the new song could in any
way be a substitute for the original.
As to its lost licensing revenue, the
court opined that all uses of copyrighted
work under a fair use rationale deprive the
owner of licensing fees. If a parody of the
original would usurp the market for licens-
ing other comedic uses, then all parodies
would fail under such an analysis. Accord-
ing to the court, this was not what was
meant or intended by the fair use doctrine.
The court went on to note that parodists
seldom are able to obtain permission from
the owner of the work that they wish to
parody, as the self-esteem of the copy-
right holder may not be strong enough to
permit the granting of permission for such
a parody in exchange for a reasonable fee.
Hence, the parody defense to copyright
infringement exists precisely to make
possible a use that cannot generally be pur-
chased via a license. The court thus found
that any harm inuring to the original song
by association with the new song was the
exact use of the original song that the law
is supposed to protect. Therefore, the court
found that the fourth factor also weighed
in favor of a fnding of fair use.
Accordingly, the court found that
factors one, three, and four each weighed
heavily in support of the defendants,
and that the second factor was relatively
meaningless in the overall determina-
tion. Thus, the court held that I Need
a Jew was a parody of When You Wish
Upon a Star, protected by the fair use
doctrine, and dismissed the lawsuit.
CONCLUSION
While parody and satire serve an im-
portant function by shedding light on ear-
lier works, not all humorous commentar-
ies are permissible under copyright law. As
this case shows, transformative works such
as I Need a Jew lie at the heart of the
fair use doctrines guarantee of breathing
space within the confnes of copyright.
Yet, fair use requires a balancing between
the goal of copyright law to promote the
creation of new works and the monopoly
to the creator that is granted by the Copy-
right Act. One must always traverse the
four fair use factors in order to create a
successful parody argument. v
Cydney A. Tune leads Pillsburys copyrights
practice section and media & entertainment
industry team and represents and advises clients
in a variety of intellectual property issues, includ-
ing copyrights and trademarks, as well as in a
broad array of entertainment, licensing, and
e-commerce matters. She can be reach at cydney.
tune@pillsburylaw.com and her bio can be viewed
at www.pillsburylaw.com/cydney.tune.

Jenna F. Leavitt focuses her practice on intel-
lectual property litigation and transactions, and
entertainment, technology, and Internet-related
matters. She can be reached at Pillsburys Los
Angeles offce at 725 S. Figueroa Street, Suite
2800, Los Angeles, California 90017, (213)
488-7100, or by email at jenna.leavitt@
pillsburylaw.com.
ENDNOTES
1. Bourne Co. v. Twentieth Century Fox
Film Corp., et al., Case No. 07 Civ. 8580 (DAB)
(S.D.N.Y. Mar. 16, 2009).
2. The Fair Use Doctrine of the Copyright Act
is set forth in 17 U.S.C. 107.
3. Merriam-Websters Online Dictionary, http://
www.merriam-webster.com/dictionary/parody (last
visited Apr. 30, 2009).
4. See Campbell v. Acuff-Rose Music, Inc., 510
U.S. 569, 582 (1994).
5. See Leibovitz v. Paramount Pictures Corp.,
137 F.3d 109, 113 (2d Cir. 1998) (quoting Campbell,
510 U.S. at 582).
6. See 17 U.S.C. 107.